Monday, October 11th, 2010

Hip-Hop, Copyright + Cultural Legacy, Part 1 :: A Conversation With Angus Batey

Angus Batey is a one of the most original and thoughtful music critics and cultural journalists I know. Over the past couple of weeks, we had an email exchange that began as an interview for a piece he was doing on hip-hop reissues. That excellent piece was published at The Guardian, where he writes regularly.

That conversation quickly evolved into a broader discussion on what copyrights are good for and bad for, how the record industry handles Black music and artists, and the role that copyright plays in the way we understand musical and cultural history. Here’s Part 1 of the conversation.

Angus: One of the reasons I’ve heard advanced several times for the lack of a hip hop equivalent of the Beatles Anthology series of releases or a big four-disc expanded, remastered box set of a classic rap album is the hip hop audience’s supposed lack of interest in old music and obsession with the new and with what’s coming next. Do you feel this is an excuse for laziness on the part of major labels, or is the average hip hop fan really not that interested in the music’s history?

Jeff: The people arguing this are either being disingenuous or stupid. The primary market for hip-hop reissues is not the 18-24 year-old demographic, it’s the 35-50 year-old demographic, just as it is for the rest of the reissues market.

Where I go off the rails is when I begin to hear such arguments as a cover for not treating Black music acts in the same way that others are treated. Most Black music tends to fall behind the copyright fences about 10 years after it’s been released.

There’s a cycle that happens to Black music. About 20 years after the music has been released, hipsters and DJs rediscover the music–and champion it once again, oftentimes rewriting the history that comes with it. It happened with jazz, the blues, soul, free jazz, funk, fusion, and now it’s happening again with hip-hop. Hipsters and DJs do two things–they create audiences for previous musical genres and they recontextualize the music at the same time.

This underground economy of hipster rediscovery has lots of upsides to go with its downsides, and it’s worth a longer separate discussion. But let’s focus for a minute on the question of impact. I find it infuriating that right now it is impossible to find De La Soul’s first 6 albums for legal download on iTunes in the U.S. The last one came out in 2001!

Yet major labels would never let a Jackson Browne album or an obscure new wave band with primarily local appeal, like Translator, go out of print. That’s not to diss Jackson Browne or Translator, both of whom I’ve liked, it’s to make the provocative argument that major labels place a low value on Black music not currently on the pop charts.

Angus: Why, do you think, hip hop history has been so neglected by the same music business institutions that are so very alive to the commercial up-side of exploiting their catalogues in other genres?

The reasons I’ve been given, at various points, include the questionable legality of reissuing material based on samples that probably weren’t cleared properly at the time and the ruinous costs involved in going through that process for a reissue; the lack of interest of the hip hop audience in old music; the lack of interest from artists in helping compile and promote reissues of their old records; the collaborative nature of a lot of rap records – guest emcees, various producers, etc. – and the lack of a watertight set of paperwork to ensure someone involved won’t sue over their share of reissue royalties; the pointlessness of doing a reissue when there may not be out-takes or other material to add to it which would increase its value to the potential purchaser.

Jeff: There are three broad reasons as I can see:

1) Structural Change
First off, the irony of global consolidation is the birth of the corporation as oversized amnesiac baby. It’s a big, slobbering toddler that can’t walk or even remember what it learned just yesterday. In real terms, corporate consolidation means that vast libraries of music are now behind copyright fences. But most of the institutional memory in these companies has long been downsized amidst corporate mergers and restructuring. The folks left–or the unlucky ones coming in–have no clue as to what is in the vaults or how to put it to use.

2) Market Failure
The reissues business remains overly fixated on white Baby Boomer tastes. The industry either ignores or condescends to post-Boomer tastes. It’s left up to indies and enterprising artists and managers who figure out how to make it work–like Traffic Distribution, Universal Sound/Soul Jazz, Stones Throw, or even Duck Down.

3) Copyright Hysteria
The Public Enemy Def Jam boxset is a perfect example. Their catalog remains influential, they still demonstrate proven commercial potential, and they did all the work of putting together their own boxset, only to have Universal nix the project presumably because they were worried about publishing and sample clearances.

What we are left with is not quite a racist conspiracy. But the accumulated devaluing of Black music works like institutional racism–all of the little things add up to a vast and widening hole in the American memory about the cultural legacy of Black artists.

Angus: When I see phrases like “copyright fence” they’re so often being used by people who seem to want the dismantling of copyright law in its entirety that I suppose I instinctively move to shore up some elements of those fences. That said, I always wince when I hear a copyright defender claiming that sampling is parasitical of “real” creatives. There’s so much misunderstanding and consequent mistrust in this debate that even working out what the middle ground might look like is hellish difficult.

Robust copyright law, interpreted logically and with understanding of different forms of creativity, is surely the least we have a right to expect in the 21st century. Creators need not only to have the rights to their work, but access to the legal mechanisms that exist to defend those rights adequately.

The main problem as I see it at present – and this goes across the board, it’s not just about sampling – is that access to those mechanisms is restricted by economics to conglomerates and wealthy individuals; this perpetuates the division by allowing a group of folks that the British technology writer Andrew Orlowski calls the Freetards to continue portraying copyright as an exploitative tool by which corporations ring-fence their profits.

All that said I really do feel for the original artists and wouldn’t want to ride roughshod over their rights. I just think there has to be a sane middle-ground between this “don’t do it just in case” over-caution and the “there shouldn’t be any laws preventing sampling, all music ought to be fair game” postures of the Freetards.

I wrote some sleeve notes for the DVD release of Shadow and Cut Chemist’s The Hard Sell a couple of years ago and found myself arguing for a kind of airplay-like system of royalty payment/compensation based on giving the original artist a cut that was a function of how many seconds – or fractions of a second – their work appeared in a piece like that.

Certainly the way things currently work, where the figure that will permit clearance isn’t based on anything other than the number the original artist’s publisher has in their head, isn’t doing anyone any favours. Here we have potentially new income for the original artists that won’t ever materialise because the law as it stands doesn’t make it worthwhile for someone like Chuck D to jump through the various hoops and thus the music never comes out. Though I realise that I’m arguing here for changes to the laws of many different nations, not merely for record companies to work harder.

Jeff: I agree with you regarding compensating the original artists. I think one thing everyone who cares about artists and creativity—whether you’re an ethical intellectual property lawyer or you are a hip-hop artist who not only samples but is being sampled as well—agrees upon is that a balance needs to be struck between allowing creativity and compensating creatives.

The solution that you proposed are what are called compulsory licenses out here—they would work exactly like mechanical royalties, on a fixed basis. Everyone on the panel agreed that’s what we need—but I expressed huge pessimism about getting such a policy passed. In the current situation there’s no incentive for the publishers and labels to fix the problem on behalf of the artists. They make too much money exploiting the situation now.

It’s the usual market-gone-crazy stuff. Artists are often left out of the deals that get cut, and at the same time, labels and publishers are only working on the 0.5% of copyrights that are worth a fortune. Included in all the rest of it is the landfill stuff—the records no one wants to ever hear again, including the artists who made them!—but also what I was calling cultural legacy. Cultural legacy is piled up with the garbage behind the copyright fence.

Government is the only place where this stuff can be worked out to the benefit both artists and the public. But the only time this stuff gets taken up in Congress is when corporations want to extend the copyright fencing or when publishers, radio and media companies, and labels can’t work out a price agreeable to all sides to do the business. It’s fucked!

And the point you make about this being a global situation is serious. Culture is one of the places countries are still waging huge battles in international bodies that don’t get talked about. But in this new economy, the debates over cultural things like movies and music are related to and just as important as, say, the debates countries are having over plant seeds.

In Part 2, we talk more about the lost Public Enemy Def Jam boxset, the politics of sample clearance, and the role of the DJ in making and remaking our cultural history. Click here for Part 2.

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